Opinion of Advocate General Medina delivered on 28 November 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0554
• ECLI: ECLI:EU:C:2024:986
• Date: 28 November 2024
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 28 November 2024 (1)

Joined Cases C‑554/23 P and C‑568/23 P

Fertilizers Europe

v

AO Nevinnomysskiy Azot,

AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ (C‑554/23 P)

and

European Commission

v

AO Nevinnomysskiy Azot,

AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ (C‑568/23 P)

( Appeal – Dumping – Imports of ammonium nitrate originating in Russia – Definitive anti-dumping duties – Request for an expiry review – Article 11(2) of Regulation (EU) 2016/1036 – Article 5(3) and (9) of Regulation 2016/1036 – Legal time limit – Sufficiency of the evidence )

I. Introduction

1. This Opinion concerns an appeal brought by the European Commission and Fertilizers Europe seeking to have the judgment of 5 July 2023, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission (T‑126/21, EU:T:2023:376), (2) set aside.

2. By that judgment, the General Court annulled Implementing Regulation (EU) 2020/2100, (3) which imposed a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036. (4) In essence, the General Court found that, according to the second and fourth subparagraphs of that article, Union producers who have lodged a request for an expiry review must submit sufficient evidence of a likelihood of injurious dumping at least three months before the end of the validity period of the anti-dumping measure concerned. This means that, once a request for an expiry review has been submitted by those producers, it is not for the Commission to remedy the insufficiency of the evidence submitted within that three-month period.

3. Both the Commission and Fertilizers Europe take the view that the interpretation of Article 11(2) of Regulation 2016/1036 provided by the General Court severely limits the exercise of collecting the evidence necessary to determine whether the initiation of an expiry review investigation, which may result in the prolongation of anti-dumping measures, is justified. They submit that the General Court erred in interpreting that provision or, in any event, erred in applying its own legal standard to the facts of the case at first instance.

4. The present case provides the Court of Justice with the opportunity to rule on the interpretation of a provision of considerable relevance to the maintenance of defensive measures in favour of Union producers against dumping practices originated in non-EU countries. The Court will have decide whether the interpretation of the second and fourth subparagraphs of Article 11(2) of Regulation 2016/1036 support the General Court’s conclusion as to the time limitations that apply, in its view, to the submission of evidence by Union producers in the context of an expiry review procedure. That requires, inter alia, that the Court of Justice determine whether some of the provisions of Regulation 2016/1036 which are applicable to the Commission’s investigations following original complaints are also relevant in the context of expiry reviews.

II. Legal framework

A. Regulation 2016/1036

5.Regulation 2016/1036 sets out the trade defence rules preventing imports from non-EU countries dumped on the market of the European Union.

6.Article 5 of Regulation 2016/1036 provides:

‘…

3. The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

…

9. Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States concerning its analysis of the complaint normally within 21 days of the date on which the complaint is lodged with the Commission.’

7.Article 11 of Regulation 2016/1036 states:

‘1. An anti-dumping measure shall remain in force only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury.

2. A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon a request made by or on behalf of Union producers, and the measure shall remain in force pending the outcome of that review.

An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury. Such likelihood may, for example, be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping, or by evidence of continued distortions on raw materials.

In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the Union producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the Union producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.

…

5. The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4.’

B. The contested regulation

8. Recitals 20, 23 and 29 of the contested regulation state:

‘(20) The Commission initiated the expiry review based on the review request as initially submitted on 21 June 2019 and further supplemented by additional information (collectively referred to as “consolidated review request”). The consolidated review request, which constitutes the basis for the initiation of this expiry review, was placed in the open file and made available to interested parties for consultation. As stated in point 4.1 of the Notice, the Applicant provided in its review request evidence of a normal value based on actual domestic prices and equally constructed the normal value in case the domestic prices would not be considered as reliable and reflecting ordinary course of trade. Whether the original request was supplemented with estimated normal values on the basis of information available on actual domestic prices in the country concerned is irrelevant in so far as the Commission initiated the expiry review on the basis of the consolidated review request.

…

(23) … the Commission recalls its position set out in recital (20) that this expiry review was initiated on the basis of the consolidated review request. The Commission considers that the request in its version filed by the 3‑month deadline contained sufficient evidence that, subject to the clarifications provided by the applicants following the deficiency process to supplement its initial request, warranted the initiation of the expiry review.

…

(29) … as set out in recital (20), initiation in this expiry review is not solely based on information as received in the original review request of 21 June 2019, but also on further evidence supplemented by the applicant prior to the initiation and included in the consolidated review request (containing evidence of a normal value based on actual domestic prices as well as a constructed the normal value in case the domestic prices would not be considered as reliable).’

9. Article 1 of the contested regulation provides:

‘1. A definitive anti-dumping duty is hereby imposed on imports of solid fertilisers with an ammonium nitrate content exceeding 80% by weight, … originating in Russia.

…’

III. Facts and procedure

A. Background to the dispute

10. Paragraphs 1 to 13 of the judgment under appeal describe the background of the dispute at first instance. For the purposes of the present Opinion, that background can be summarised as follows.

11. AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’ (5) are producers and exporters of ammonium nitrate established in Russia. They are subject to the anti-dumping duties that result from Council Regulation (EC) No 2022/95 of 16 August 1995 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 1995 L 198, p. 1), as subsequently maintained in 2002, 2008 and 2014 following several expiry reviews.

12. On 21 June 2019, the Commission received a request for the initiation of an expiry review of those duties, on the basis of Article 11(2) of Regulation 2016/1036, (6) lodged by Fertilizers Europe, a European association of fertiliser manufacturers. That request was...